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The Vegas Strip Steak Patent

We’ve noted before on this blog that food receives limited protection from copying. But that doesn’t mean it receives no protection. As we all know, Coca-Cola’s secret formula is still secret. And sometimes food companies patent novel (and not so novel) dishes and techniques.

Patent and “trade secret” (the legal right Coke relies on) present very different economic benefits, however. Trade secret is forever—if the secret can be kept secret. Patent, by contrast, lasts 20 years and protects the invention against any copyist. More importantly, patent is fundamentally based on disclosure: to patent something, you have to explain how it works.

How do firms choose between the two? That’s a big question. But we can get a window on it by looking at something that has been in the news lately—the so-called “Vegas Strip Steak.”

According to Oklahoma State University, which is claiming the patent, the Vegas Strip Steak is very similar to the New York strip. The OSU folks are keeping quiet about the precise location of the Vegas Strip Steak – at least until their patent is granted. Which, if the United States Patent and Trademark Office does its job, probably won’t ever happen.

Why? There’s no way OSU could patent the steak itself. The steak is just a piece of a cow. It is, in other words, a product of nature, which cannot be patented.

Wisely, OSU’s patent apparently isn’t on the steak itself, but on the knife cuts necessary to extract the steak. But that approach is dubious as well. Once you know where the steak is, the cuts necessary to get at it may be obvious to a skilled butcher. Things that are obvious cannot be patented.

If OSU probably shouldn’t get a patent on the Vegas Strip, can it emulate Coke and use trade secret? That isn’t too likely either. People have been eating cows for many thousands of years, and we know the animal pretty well. If the OSU folks have indeed identified a piece of meat that was previously undervalued, people who know bovine anatomy will probably have a pretty good idea of where in the animal to look once they’ve seen the steak. And even if somehow the location of the Vegas strip is harder to find than we think it is, the secret will probably get out soon after OSU teaches a slaughterhouse how to extract the steak – someone will talk.

There is, of course, Coke’s great counterexample Coke discloses its formula only to a few top executives, and it takes extraordinary measures to keep the recipe secret. So maybe OSU could also exert strict control over their “recipe” for extracting Vegas strips. To do so, they’d probably have to build their own slaughterhouses, hire just a small number of people to produce the steaks, pay them really well to keep quiet, and bind them to contracts that attempt to punish them if they do not.

The economics of this strategy are hard to see, which is probably why OSU is not pursuing it. That leaves one last possibility.

OSU’s best strategy is probably to claim a trademark in “Vegas Strip”. That way, even if other producers can sell the same cut of meat, they can’t use the same name for it. And in a world where many if not most consumers have no idea which part of the cow their steak comes from, the “Vegas Strip” trademark may be very valuable. If consumers associate a great taste with the “Vegas Strip” name, they’ll pay more for OSU’s steak. And that can help it to beat its competitors even if other producers are allowed to market the same cut of meat.

All of which shows that, as far as IP goes, there is more than one way to skin a cow.

Mike

People really need to find a new example as the Coke thing is more hype/marketing than it is a good example of a trade secret.

Anonymous Coward

June 1, 2012 @ 5:06pm

No, they didn't. Coke claims it's not the recipe. And in any event, even if it is, at best it's a very old version of it -- not the current formula, which Coke has long admitted has changed over the years.

frankenduf

June 1, 2012 @ 5:03pm

" a product of nature... cannot be patented"- apparantly the authors are unaware of gene patents

YX

June 1, 2012 @ 5:10pm

Not exactly same thing...
Gene patent is about how you obtain and manipulate a particular gene, not patent the gene itself. It's actually very similar to the VS cut, in that you can't patent the steak itself, but can attempt to patent the cut (if the cut is not obvious, which obtain gene surely is not).

Jenizaronegro

June 4, 2012 @ 4:42am

Hopefully, a Vegas Strip TM should be denied because it lacks distinctiveness.
C'mon guys, let's put an end to nonsense monopolomics and compete on quality, prices or both!
And let Adam Smith rest in peace in his grave. Amen.

James Faier, U.S. Reg. Patent Attorney

June 4, 2012 @ 3:55pm

The two hurdles to patent under U.S. law are: (1) that the invention be novel and (2) that the invention be non-obvious in light of prior inventions. Inventors need to differentiate between that which can get a patent and that which makes sense to patent. A patent is a piece of property just like a piece of land except that with land you have a survey which sets out the legal description of the property and with a patent you have a patent document with a list of claims. With land the value is typically driven by the number of folks who want to occupy that space and how much they would spend to be at that location. With a patent you have the same question of how much a person would pay to stand on your property. In both cases the owner can make money by renting the rent to be there. If you want to talk about your idea, then look at www.faier.com or email me at jmfaier@faier.com

Mike

June 4, 2012 @ 8:08pm

Obviousness as an objection to patents is overrated.

A half-skilled patent attorney will point out to the USPTO that if it were obvious, it would have been found by now. The fact that a couple of billion cows have been slaughtered without anyone discovering that a steak (rather than a hamburger) could be made from this particular lump of meat is in fact evidence that the cut is anything but obvious.

Thomas B.

June 7, 2012 @ 2:25am

The article suggests, perhaps unintentionally, that the USPTO aggressively vets patents, rather than simply presuming validity while punting to courts to clean up any messes.

I'm no expert in steak law, but this assumption might bear further scrutiny.

Rebeca Mata

June 7, 2012 @ 12:03pm

This is an interesting article. I do agree with the author that it would be hard to patent the "Vegas Strip" Steak. It is a piece of meat from the cow. It is also true that we have been eating cow meat for many years and it would be hard to patent the manner in which the steak is cut. Therefore, OSU's best strategy would be to trademark the steak as is recommended by the author. Furthermore, to try to keep a secret the manner in which the meat is cut ore the area of the cow from which the meat is cut would be very difficult and expensive.

Dave

June 8, 2012 @ 10:52pm

In the wine industry there are certain wines that can only be made in certain areas. Those who make sparkling wines that are made using the grapes and methods of Champagne, use the phrase Methode de Champagne. Jack Daniels cannot legally be called Bourbon because Bourbon can only be made in Kentucky. Some cheeses are named for their region of manufacture.
There are many other examples that I can't name off the top of my head, but one possible solution is to say the steak is cut in the style of Las Vegas Strip Steak, or even a more generic name like LV Strip cut. The marketers and lawyers will figure it out
I am sure that when it is figured out how it is cut, they will find a name for it that doesn't infringe on trade marks.

(annonymous)

August 23, 2012 @ 3:23pm

Remember the flat iron??? Now try taking one out of a shoulder clod...pain in the ass

Ken Jones

May 3, 2013 @ 6:36am

Regarding Utility Patents, (not US Design patents, which are easy to get and get around) you can't patent an idea or a slice of meat, all you can patent is a product or a process which mustn't be 'obvious to somebody skilled in the art' like a butcher. The best cuts of meat are market driven so the only opportunity would be a process different to mince which creates a steak from the parts that are discarded like offal. As these go to pet food and other products the new product would need to sell at a higher price to be worth the trouble of applying for a patent. I would imagine about the only way of getting a patent on a beef would be to create a homogenised product, which is different to a burger. If you liquidized offcuts, congealed the soup into a solid and then sliced it up the PROCESS might be worthy of a patent, however could the product be described as beef? More importantly would anyone buy it? That's the bit that most inventors ignore. If anyone is interested in patenting I'd recommend DIY Patent Online, a cheap Amazon ebook, which tells you what you want to know in words you can understand. They also have a website which is not selling any services, just telling you how to go about patenting internationally without an attorney.